How can a child correctly enter into inheritance rights after the death of his father without a will?

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Published: 08/08/2018

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The procedure for entering into an inheritance after the death of the father can have two main options: if the father left a will for the apartment, or if there is no will. If there is a will, it is given priority, but even when there is no such document, the children have the first right to the father's property after his death.

• Who takes over the inheritance after the death of the father without a will first?
• How to receive an inheritance after the death of your father
• The procedure for accepting and registering an inheritance for an apartment without a will
• Documents for registration of inheritance for an apartment
• Features of inheriting property without a will
• Registration of inheritance through court proceedings

Who takes over the inheritance after the death of the father without a will first?

When the father has left a will, the inheritance procedure is extremely simple: the property is distributed among the persons specified in this document and in accordance with the wishes of the testator.

If there is no will, the inheritance procedure according to the rules of law comes into play. It involves the distribution of property in accordance with priority. Initially, all property is distributed among the heirs of the first stage, only then it passes to the second stage and beyond.

The first-order heirs include the deceased's wife, his children and parents. The entire inheritance mass is distributed between them in equal shares. For example, if there are 4 heirs left, then each gets ¼ of the property, if there are 2, then ½ each. If the father has no one left except his only child, then he inherits all his property.

Common-law wives do not receive rights to inherit without a will. Therefore, if the parents’ relationship has not been legalized, then the common child will inherit all the property.

Even if the parents were divorced at the time of death, the child is not deprived of his right to inheritance. He can also claim the property of the deceased as part of the first priority, when the father was deprived of parental rights during his lifetime.

This rule does not apply to children who were adopted during their lifetime, only to natural descendants. If the adoptive parent is deprived of parental rights, the children will not be able to receive an inheritance. In general, adopted children are entitled to all the same rights as full-born children.

If the father dies before he inherits certain property, the children become heirs according to the rules of transmission. They are enshrined in Art. 1156 of the Civil Code of the Russian Federation. For example, citizen R. bequeathed a share in a business to his father, but he did not have time to inherit because he died. Therefore, the specified share in the business will pass to the children of the testator as the primary successors by transmission.

Legal subtleties

To determine the order in which property is acquired, it is important to identify the order of inheritance. If we are talking about the division of the property of a deceased son, his parents, spouse and children will receive. These persons are classified as the first category of heirs. Property is divided between them in a certain way.

If the testator has a spouse, his share is determined first. This is due to the fact that the spouse has the right to 1/2 of all jointly acquired property. All remaining property is divided in equal shares among the remaining heirs of the first circle. And only in the absence of heirs of the first circle or if they refuse the inheritance, the right to receive property passes to persons from the second circle.

How to receive an inheritance after the death of your father

When registering an inheritance after the death of a father without a will, you must adhere to the following algorithm:

1. Contact the notary at the father’s last place of residence with an application to accept the inheritance. This must be done within six months after the death of the testator. Here you need to clarify whether the father left a will. If not, then the child is the legal heir.
2. Gather the necessary documents and request a property valuation report if necessary.
3. Provide a set of documents to the notary confirming the rights to inheritance and the father’s ownership of certain property.
4. Pay a state duty in the amount of 0.3% of the assessed value of the property , but not more than 100 thousand rubles.
5. Receive a certificate of right to inheritance from a notary in six months.
6. Re-register ownership of the testator's property in your favor.

You can also receive an inheritance if the heirs actually accepted the father’s property. That is, they paid off the debt, preserved the inherited property and incurred expenses for its maintenance (for example, repaired cars, paid utility bills or property taxes), etc.

In this case, obtaining rights to inheritance is allowed after the expiration of a six-month period.

Missing a deadline

Mom and dad, like other heirs, have a period of six months to enter into inheritance rights.
Such a long period was introduced in order to provide time for searching and notifying all potential applicants and to give the heirs time to recover, since the loss of a loved one is always a great grief and you may not want to deal with the registration of his property at first. If the six-month period is missed, the heirs will be able to restore it. This will require serious reasons. Thus, a good reason would be to have a medical certificate indicating that the citizen was previously unable to contact a notary due to health reasons. Also, a business trip during which the heir did not know about what happened or could not exercise his right will be considered a valid reason.

Restoration of the term is carried out only through the court. Also, other heirs can give their consent to the inheritance of an applicant who has missed the deadline. Then their shares are redistributed so that the person who appears receives his part of the property.

Inheritance by parents after the death of a son is carried out in the general manner. Applicants must contact a notary within the prescribed period, provide him with all documents, go through the procedure established by legal acts, and only then will they be able to transfer the son’s property to themselves.

Parents may be entitled to a mandatory share if they are disabled or have reached retirement age. Otherwise, the procedure follows generally established rules.

Read: What to do if the heir has entered into an inheritance, but has not registered ownership?

The procedure for accepting and registering an inheritance for an apartment without a will

Quite often, the father’s apartment is inherited. If the head of the family dies without leaving a will, then his property passes to his heirs according to the law. According to Art. 1142-1145 of the Civil Code of the Russian Federation, first of all, real estate is inherited by children, wives and parents.

According to paragraph 2 of Art. 1141 of the Civil Code of the Russian Federation, the heirs of each subsequent stage receive equal shares of what the testator has acquired. An exception is inheritance by right of representation. In the latter case, the share of the deceased heir is divided among his descendants in equal shares.

For example, a citizen had two daughters. One of them died before the death of her father, but she left behind a child. It is the daughter’s child (grandson) who will receive ½ share of the apartment by right of representation, the other half will go to the second daughter.

An apartment can be inherited only if the ownership rights to it have been properly registered. Thus, non-privatized municipal housing is not included in the inheritance estate. But if the father began the privatization procedure during his lifetime, but did not have time to complete it, then the heirs have the right to demand through the court that the right to complete the privatization procedure be transferred to their name.

When the apartment was part of jointly acquired property, it is inherited only to the extent of 50% of the father’s share, while the other 50% remains with the spouse.

When entering into inheritance rights in relation to an apartment, children will have to pay a state fee, which is calculated based on the cost of the apartment. The calculations may be based on the cadastral or market value of the property. The cadastral valuation is contained in an extract from the Unified State Register of Real Estate, which must be obtained from Rosreestr. For a market valuation, you will have to turn to professional appraisers.

The children of the testator pay less state duty for the apartment than persons who are not related to the deceased. The state duty is paid in the amount of 0.3% of the cost of the apartment. The amount received should not exceed 100 thousand rubles. If there are several heirs, then they divide the state duty among themselves in equal amounts.

For example, a daughter and son inherited an apartment from their father with a cadastral value of 5 million rubles. The state duty will be calculated as follows: 5000000*0.3=15000 rub. Each child must pay RUB 7,500. state fees for entering into inheritance rights.

After the notary checks all the submitted documents, he will issue the heirs with a certificate of inheritance. He has the right to register it no earlier than six months after the death of the testator, even if the children applied for the inheritance immediately after the death of their father.

A certificate of inheritance is an official document that serves as the basis for the subsequent re-registration of ownership of a child. To do this, he should contact Rosreestr with the issued certificate and an application to assume ownership rights.

Based on its consideration, the child will receive an extract from the Unified State Register of Real Estate, in which he will be listed as the copyright holder.

Once property rights have been properly legalized, the heir becomes the full owner. Now he can dispose of the apartment at his own discretion: donate it, sell it or bequeath it.

He should also not forget about his responsibilities for timely payment of utilities and property taxes.

Opening an inheritance

Article 1113 of the Civil Code of the Russian Federation specifies that the opening of an inheritance can only be made after the death of a citizen. If there is no documentary proof of his death, he may be declared dead by a court decision . The date of opening of the inheritance is determined based on this decision (the day it comes into force).

Clause 2 of Art. 1114 of the Civil Code of the Russian Federation clarifies that the death of citizens that occurs on the same day equates them to those who died at one moment . They cannot inherit from each other. If death occurs on different calendar days, the right of inheritance is preserved.

The place of opening of the inheritance of a deceased child is considered to be the place of official residence (Article 1115 of the Civil Code of the Russian Federation) of the testator.

If he lived outside the Russian Federation or his place of residence is unknown , the place of opening of the inheritance is the location of the property. Owning property located in different places (apartments in different cities) allows you to open an inheritance case at the location of the most valuable property.

Documents for registration of inheritance for an apartment

In order to register an inheritance for your father’s apartment, you need to collect a certain set of documents, which includes:

• passport;
• father's death certificate;
• certificate from the passport office , which confirms the father’s last place of residence;
• birth certificate or paternity certificate;
• documents confirming ownership rights to inherited property: certificate of ownership, extract from the Unified State Register or Unified State Register, purchase and sale or privatization agreement;
• a certificate of cadastral value of real estate or an extract from the Unified State Register of Real Estate or a report on the market value of the apartment.

The order of succession in the Civil Code of the Russian Federation

The heirs of the deceased are his living relatives, as well as persons conceived during the life of the citizen and born after the opening of the inheritance.

Art. 1142 - 1145 and art. 1148 of the Civil Code of the Russian Federation determines the order of inheritance by law. The inheritance scheme applies to all family members of the deceased, who inherit one after another in accordance with their turn.

The order of inheritance according to law - the scheme in 2021 after the death of the testator:

1st stage - children (natural and adopted), parents, spouses;

2nd stage - brothers and sisters (full, half-blooded, half-brothers), grandparents (relatives);

3rd stage - uncles, aunts and cousins ​​(cousins);

4th stage - great-grandparents (relatives).

5th stage - cousins' grandchildren (i.e. children of the testator's own nephews and nieces), as well as great-uncles and grandmothers;

6th stage - cousins, great-grandchildren, nephews, nieces, uncles and aunts.

7th stage - stepsons, stepdaughters, stepfather and stepmother.

Features of inheriting property without a will

When inheriting property without a will, it is worth considering some features associated with registering an inheritance for minor children. Thus, according to civil law, they have limited legal capacity until they reach 18 years of age. Therefore, the decision to enter into inheritance must be made for them by their legal representatives.

Minor citizens can be recognized as legally competent after they have reached the age of 16, when they registered their individual entrepreneur, or they got a job or got married.

To enter into an inheritance in relation to the father’s property, an application for this to a notary is submitted by the child’s legal representative (for example, his mother). If the child is already 14 years old at the time of opening the inheritance, then the application is submitted by the teenager himself, but with the consent and in the presence of a legal representative.

If accepting the father's inheritance is unprofitable for the child, he may refuse it. But for this you will need to first obtain permission from the guardianship authorities.

Inheritance is today a common way of transferring property after death. But it is not always convenient and has certain risks and disadvantages.

Thus, when inheriting an apartment without a will, there is a high probability of disputes arising between the heirs . Persons who are left without property may try to challenge the distribution of property.

Also, children will have to wait a long time to receive an inheritance: they will be able to re-register the apartment as their own no earlier than six months after the death of their father . And if there are disputes regarding real estate, then this procedure may drag on even more.

Do not forget that entering into an inheritance is a very expensive procedure and may require children to pay considerable expenses for paying state fees, valuation, etc.

Therefore, during his lifetime, as an alternative to inheritance, the father can transfer the apartment through alienation of property. We are talking about contracts of sale and gift. In order to be sure that the child will get the apartment, you can write a deed of gift for it. This transaction is executed during the life of the father and involves the gratuitous transfer of property rights in favor of the child free of charge.

Its advantage is that property is transferred between relatives by deed of gift without levying tax. Close relatives such as a father and his child do not pay personal income tax, while persons without a relationship who receive property as a gift must pay 13% of the value for it.

When re-registering an apartment using a deed of gift, a child will only need to pay a state fee of 2,000 rubles. for taking ownership, he is exempt from other expenses.

The inheritance may even go to the state

If no one accepts the inheritance within 6 months, then the property is considered escheated and becomes state property.

Housing and land plots are transferred to the ownership of the municipality on whose territory they are located (and in cities of federal significance they become regional property). And all other property is recognized as federal property.

Therefore, you should not delay the registration of the inheritance, believing that you are already the legal heir. It may turn out that even though you are an heir, the property has already become state property.

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How is the marital share allocated?

The joint property of the spouses is considered to be the property that they acquired during the marriage. Consequently, it is subject to division on the eve of registration of the inheritance.

If there are supporting documents, the notary independently allocates the marital share. However, the issuance of the relevant certificate is carried out upon the application of the spouse.

The procedure is paid. The applicant must pay for notary services. In 2021 in Moscow you need to pay from 4000 to 6000 rubles.

The remainder of the property is divided among the legal successors in equal shares.

Rules of inheritance proceedings

When a citizen dies, his relatives must provide the notary office with papers confirming the death. You can get them from the registry office. The six-month period begins on the specified day. During this time, you will need to write a statement regarding the acceptance of the inheritance. When going through this process, various nuances may arise.

Including:

• the main papers used during the process will be those that confirm the death of a citizen and the presence of family relationships;
• to determine the composition of the inheritance, acts submitted by the legal successors are used.

The heirs need to collect and bring to the notary the papers indicating that the deceased has rights to the property. This includes an extract from the Unified State Register of Real Estate and a purchase and sale agreement. Also, statements are made from bank accounts. When a person does not have the specified papers in hand, the employees of the notary office independently request them from the authorized bodies.

IMPORTANT !!! Within one group of heirs, the size of the shares is equal. This principle is reflected in civil law.

Including, in addition to the mother and father of the deceased, children and wife/husband can apply. Between them, the property mass is redistributed one quarter at a time. Sometimes equality of shares is not respected. This applies to a situation where the legal successors are not against this solution to the issue. For this purpose, a document is prepared in written form.

Citizens have the opportunity to write a waiver of the property they are owed. In the course of inheritance on legal grounds, the fact of loss of ability to work does not matter. There is no need to confirm it with documents. In some situations, successors are considered unworthy. Then they cannot count on inheritance.

Use of a testamentary instrument

The legal provisions provide that two options are available for dividing the estate of a deceased person. First of all, the contents of the will, if any, are taken into account. When the specified act is not formed, the share for each legal successor is determined on the basis of legislation. These options assume that orders that differ significantly from each other are applicable.

Regardless of which option is used to redistribute the property of the deceased, his parents have the right to receive a part in any situation. This applies to parents who have lost their ability to work. If there is a will drawn up, then the situation is resolved depending on what is reflected in the contents of this document. When the inheritance must pass to strangers, the mother and father acquire a mandatory share.

Sometimes only part of the property belonging to the deceased is reflected in the will. Then the remaining part is inherited based on legal provisions. In a will, a person can indicate what exactly his property will go to his mother and father.

There are no problems in the relationship under consideration, provided that the content of the said act reflects information about both parents of the deceased. In this situation, the employees of the notary office execute the will of the deceased citizen in full accordance with the prepared act.

When the property of the deceased is redistributed between persons outside of him, relatives have the opportunity to apply for a compulsory share. For this purpose, evidence is collected that the citizen lacks the ability to work. This happens when you receive disabled status or enter retirement age. In addition, the basis is considered retirement and so on. The above factors must be confirmed within the framework of inheritance proceedings. The opening of such occurs within the notary office. This can only be done after the owner of the property passes away.

ATTENTION !!! If the provisions of the inheritance order apply, then confirmation of the existence of family ties is required where there is a share of the inheritance in order to allocate the obligatory share. The legislator reflects the size of such a share.

It cannot be less than half of what the person would have received using the laws of inheritance. This part must be determined taking into account how many legal successors there are assigned to the first group. This includes the parents and children of the deceased person.

The share, which is mandatory, is allocated when using assets owned by the citizen. Those things that are not specified in the will are taken into account. When there are not enough of them to allocate such a part, the shares of other legal successors are reduced.

Second stage

According to the law, the heirs of the second stage are the brothers and sisters of the deceased - both full and half-blooded (half- and half-blooded), as well as his grandparents - the parents of the father and mother.

At the same time, children of second-order heirs (nephews and nephews) can enter into inheritance, like the grandchildren of the deceased, only by right of representation.

Heirs of the second stage can exercise their right of inheritance only if there are no living heirs of the first stage, or they are deprived of inheritance rights or voluntarily renounced them.